VOL. XV.] EXOHEQUER COURT REPORTS. 487 IN THE MATTER OF THE PETITION OF RIGHT OF HODGSON, SUMNER ' & CO., LIMITED [915 May 6. SUPPLIANTS; AND HIS MAJESTY THE KING, RESPONDENT .ustoms --Goods stolen or lost while in bond in Customs W arehouse—Liability of Crown. Held, following Corse vs. The Queen (3 Ex. C.R. 13) that the Crown is not liable for the loss of any goods while the same were in the custody of the Officers of Customs. THIS was a claim against the Crown by petition of right for the recovery of $260.89, the value of certain goods which were alleged to have been. lost or stolen while in the custody of the Customs authorities. The facts of the case are stated in the reasons for judgment. May 1st, 1914. The case came on for hearing before the Honourable Mr. Justice Audette, at Montreal. A. Geoffrion, K.C., for the suppliants. L. T. Marechal, K.C., for the respondent. Mr. Geoffrion contended that the action would be one based either on a quasi-contract or on a contract. The Crown took possession of the goods for the .pur-
488 EXCHEQUER COURT REPORTS. [VOL. XV. isr pose of examining them, and has not returned them. HOD v O .SON The reason why it may not be a contract is this, a THE ICING. contract supposes freedom, mutual consent. The Arg um t Crown should either return the goods to the suppliants or pay for them. If it is a quasi-contract, it corresponds to what a bailment is in English law. Now coming to the question of whether or not there is a bailment here, the Corse case was similar to this one, and it was there held not to be a bailment. That is my difficulty. You must look at the law of the Province where the transaction took place. What would be a bailment in one Province, might not be one in another. Whether the Crown can ever be a bailee or not is immaterial. The only way in which I can distinguish that particular case from the present . one, is that it was established there that the Crown was dispossessed—the goods had been stolen. In the case before the court, the Crown has not proved that the goods are not still in its possession—they simply say we cannot find them. The Crown took possession of the goods, and it has not been established that they are no longer in its possession. If it is a quasi-contract it is to be governed by the law of contract and not by the rules with respect to tort; and if the Crown is bound by a contract, it is equally bound by a quasi-contract. Mr. Marechal contended on behalf of the Crown that the case now before the Court was absolutely similar to. the Corse case. The suppliants were aware of the system of examination which was followed in the Custom House at Montreal, and that custom has existed for the past fifty years. In the case of Fry y. Quebec Harbour Commsisioners (1)—which was confirmed by the Court of Appeal (2), it was held that "a (1) Q.R. 9 S.C, 14. (2) 5 Q.B.R. (Que.) p. 340.
VOL. XV.] EXCHEQUER COURT REPORTS. 489 " warehouseman is not liable for a foss resulting from a 1915 " cause the danger and risk of which was made known HoD?SON "to the owner of the goods at the time they were T KINQ. "warehoused." In this case there is no quasi-contract J R u e d as g o m ns e for nt. —it is purely and simply a contract and; you cannot enlarge the interpretation of the section of the Act, and base the claim upon a quasi-contract. AUDETTE, J. now (May 6th, 1915) delivered judgment. The suppliants brought their petition of right to recover the sum of $260.89, being the value to them of certain goods purchased in and imported from Ger-inany, and which would appear to have been stolen or lost at the Custom House in Montreal. The above value includes the duty paid. The goods in. question, which were fancy goods bought for the Christmas trade, belonged out and out to the suppliants, having been bought by them in. Germany. The goods were packed in a large case, four feet by three feet and three Teet in height. This case, one of several, was taken from the steamer to the third flat of the Examining Warehouse, where the goods were examined and appraised, as appears by Exhibit No. 2, and sent dcrwn to the basement of the building for delivery. Such delivery is usually made—at any rate it was at the, date in question—under the practice prevailing at the Custom House of the Port of Montreal, upon this examination ticket, Exhibit No. 2, being handed to the checking Customs clerk, who takes receipt for the goods upon this ticket, which is finally retained by him. Upon obtaining this examination ticket, the suppliants deputed their own carter to go and take delivery
490 EXCHEQUER COURT REPORTS. [VOL. XV. 1915 of the case in question. Upon enquiry, and after HOD G SON V. searches being made, it was found that the case was THE KING. missing, and a correspondence was started between the Reasons for Judgment. said suppliants and the Collector of Customs at Montreal in respect of the same. On the 10th March, 1911, the Collector of Customs, addressed to the suppliants a letter reading as follows:— "Referring to your letter of the 4th inst. res-"pecting one case ex S.S. Montezuma short-delivered "to you from the Examining Warehouse on entry "No. 54578A, I beg to inform you that this package "was duly received in the Examining Warehouse, "examined by Appraiser and returned to the ground "floor where all trace of it, I regret to say, has been "lost. A very thorough search has been made "without avail. I return you the examination "ticket and can only trust that sooner or later "trace of the package may be found. " Yours truly "R. S. WHITE, "Collector of Customs." This established beyond controversy the failure on behalf of the Customs authorities to deliver the goods after due demand had been made therefor. The goods have ever since been missing and the suppliants are suing to recover the value thereof. For the loss of goods under such circumstances is the Crown liable ? That is the question to be determined in the present action. The same question has been under consideration before this Court in the case of Corse y. The Queen (1) where the question has been answered in the negative, denying the subject any redress. There is no reason (1) 3 Ex. C.R. p. 13.
VOL. XV.] EXCHEQUER COURT REPORTS.. for reaching any other conclusion, the present case not being distinguishable from the The suppliants not being entitled to the relief sought by their petition of right, there will be judgment for respondent with costs. Judgment accordingly. Solisitors for suppliants : Geoffriom, Geoffriorn and Solicitor for respondent : L. T. Marechal. 491 1915. Corse case. HODGSON THE KING. R J u ea d sott s e n fo t. r Cusson.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.